refracting theory: politics, cybernetics, philosophy

Post-media Piracy and the Common: Towards the Resingularization of Subjectivity

In his meditations on the nature of integrated world capitalism, Guattari proposed an idea that has for the most part remained undeveloped despite its obvious connections with the major motivations behind his work. The notion is that of a post-media era. Perhaps such an age would be focused more specifically on the re-singularization of subjectivity rather than on the possibilities of tailoring massive marketing schemes for the reduction of subjectivity to its smallest common denominator and its largest aggregates. This essay attempts to provide an outline of one of the areas of struggle (along with a number of skirmishes) in this post-media era concerned with the sharing and dissemination of media through different means made possible by the internet. Its goal is to evaluate the strategies of capitalism (specifically concerning copyright laws) towards thinking about its looming crackdown of what is termed internet piracy. Rather than dealing explicitly with the moral or legal questions about the legitimacy of piracy in general—do we, for example, resent or applaud the (future) laws (or lack thereof) qua laws or because of their entanglement in the strategies and motivations of capitalism?—here it seems more appropriate to reflect on the means through which integrated world capitalism has endeavored to appropriate what it perceives as potential markets and their consolidation. This investigation will thus have to consider the legal campaigns underway at present to address this issue of internet piracy. This will give us an opportunity to then suggest why this attempt to eliminate internet piracy will ultimately fail and how users online have already formulated practices beforehand in order to navigate the future prospect of legal repercussions for the online trafficking of different multimedia.

It would be fruitful to begin by unpacking the notion of a post-media era. We could of course turn to Guattari[1] and attempt an analysis of his few texts on the issue, but I believe the profundity of the notion may have been on the horizon of his thought for good reason. This notion of post-media both predates and anticipates the somewhat fantastic moment when the internet in its fullest form not only became a concrete possibility, but also an everyday reality for the general public. Although not necessarily perceived at first, the introduction of the internet acted (like any other medium) in such a way that it inevitably affected the position, influence and importance of the other media existing at the time; but it also made possible the distribution of virtually any other medium, and so it therefore functioned as a catalyst for a deterritorialization of an almost unlimited number of media capable of digitization as such that would become evident after only a few years in its activity.

In this sense, the post-media age is definitely not beyond media, as though we gave up simply on the technological prospect of extending the senses and sensibilities of mankind in a sort of universal Ludditism. Perhaps worse would be the science fiction narrative of an apocalyptic aftermath in which all the means of recording and producing were reduced to a bare minimum of media (the open air for sound, perhaps some lines in the sand for visual art, a sort of meltdown of technico-aesthetic capacities). Perhaps one possible interpretation would be that a post-media era would involve the heightened and more widely dispersed capacities for the means of recording, producing and translating media, a sort of decentralization of the radio, the cinema, the book, etc. towards a more universal access to what we might more broadly call culture. Nevertheless, it may be wise to interpret the post- as an indication of the breakdown of hierarchy among media and their immersion in a body without organs that has made possible both their destratification and their decapitalization, so to speak. So perhaps the first question integrated world capitalism might ask concerning a post-media world would be: what happens to markets subject to this deterritorialization and what potential markets does this open up (really, only one question: what are the projections of the market, in the double sense of the genitive?).

A good example for how this question played out historically is the classic example of Napster. When it first began in the mid-90’s around the time of the existence of the World Wide Web, Napster was one of the most popular examples of a peer-to-peer program that allows users to directly search for music files and connect with other users online in order to download and exchange these files. After a few years of successfully running with no legal troubles, Napster was sued by Metallica and then eventually by A&M records. Although they put up a fight for a short while, the program was shut down without much further notice. What is important to realize about this shutdown is the way in which the lawsuit, which ended up costing them some 40 million dollars to the recording industry, forced them into trying to convert their peer-to-peer network into a program that would require a monthly subscription fee. Although many users dropped the program because of that, what forced them into bankruptcy is the fact that Napster had trouble gaining the licenses to disseminate the audio. In a cruel twist of fate, Napster was reborn after being bought up and retooled as a legal way of purchasing music, more or less serving as the prototype for a program like Itunes with its starting price at about 99 cents a song. What began as a network of users transmitting audio files to each other became the basis for a model of marketing the online consumption of music.

The fact that Metallica sued Napster first is crucial, and the reason for the lawsuit has been well-documented. Having just recorded a demo for their new single ‘I Disappear’ which was featured on the movie Mission Impossible and also a single for MTV and the radio, Metallica soon found out that Napster users had obtained a copy and were disseminating the demo before the band had a chance to release it for the first time on the radio as a means of advertising their new song. Moreover, this leak had allowed some intrepid radio Djs to play the demo on the radio, completely deflating the projected advertising campaign. The important thing to note is that it was not necessarily the explicit and blatant sharing of their music that led the group to sue the company, but the fact that their timetables for blitzing the radio and music television stations with their advertising had been short-circuited in such a way that it became an embarrassment, an insult to an industry that could not keep pace with the effects that the internet was making possible at the time. Instead of sending the message “Buy our records!”, they were hearing before the fact, “Hey, go download their records, don’t wait to pay for it!” And instead of finding something positive in this event in terms of the free publicity, promotion, and a certain type of buzz, they reacted to it in a way that indicated that they conceived of these exchanges as thefts of property and publicity. Thus what is being threatened at base is the recording industry, the radio/music television complex and the publicity or promotion machines that feed off the recording process. Here the medium of the internet in its access to the digital medium of music shows itself to be a threat to the exclusive hierarchy surrounding it on the side of capital. The second question capitalism might ask concerning this incident more generally could be something like: how can capital indefinitely expand its axiomatic if it does not rely on and work through the legal apparatus? How can it best push along the legal system’s boundaries while simultaneously accelerating its own?

The question of copyright law is a tricky and thorny one, and it is not something we shall deal with here too directly for fear of being pricked. But the issue of copyright problems (at least in the immediate context of music media) was probably raised well before the Napster trials, but it did not receive as much, if any, attention due to the fact that it was never played out in court. One of the earliest animated shows on MTV (which was recently reborn last year) was called “Beavis and Butthead.” It was notorious in its day for scaring parents with tales of children who had reproduced some of the dumb things illustrated in the show. Be that as it may, the truly disquieting aspect of “Beavis and Butthead” is the irreverent way in which they treat the music television shows that they generally watch during their own show. In fact, half of the episodes are random cutaway scenes to the two title characters sitting on their couch and laughing at the music videos they are watching. The brilliant part of the comedy is that it is not stupid humor for the masses despite the dick and fart jokes; instead, the real humor is elsewhere. The actual joke is the fact that MTV is providing its viewers with an image of who they are, even if that image is profoundly distorted. In actuality, “Beavis and Butthead” is social commentary about the brain-decaying effects of the very culture that MTV is itself producing—it is an image of the consumer thrown back in their own faces. Here the intersubjective consumption of mass culture is reduced to its stultifying stereotypical minimum.

But the social critique goes deeper. In a sense, what the title characters are laughing at is the silliness in which music has come to take on its modern form as the so-called music video. If video killed the radio star, it also added a visual form in which to kill the listener. The avid music lover is reduced to the ogling stoner teenager who doesn’t necessarily hear the music without seeing its accompaniment first. When music becomes spectacle, consumption seems to lead to an indigestible trance facing this dressing up of the refrain. Thus Beavis and Butthead can be seen as the substitutes of a foregone radio audience which had the ability to concentrate on disembodied sounds without the sparkling allure of the cinematic supplement. On the one hand, this signals a deterritorialization of the listening audience and a reterritorialization onto a visual medium that almost serves as a distancing mechanism for culture itself and the actual intensity of the music experience. It is this shift that the idiots of the show exemplify in their passive digestion of the music video. Could this express a shift from the cool medium of the ear to a hotter medium of the music video? In any case, one thing can be certain: Beavis and Butthead are the prototypical consumer for a new artistic medium—the modern music video.

Nevertheless, what does this have to do with copyright law? In actual fact, Beavis and Butthead enjoyed an incredible success in their first few seasons, prompting MTV to release their episodes on VHS form. The sad fact about this release is that the episodes are edited, such that all the scenes in which the two characters watch and critique music videos are cut out. Now, one explanation—highly simplifying—would be to suggest that MTV wanted to save costs and that the best way to do that would be to cut the episodes in half. A better rationalization would add that by cutting the music videos, the producers are giving the audience the ‘essential’ part of the show, insofar as the show is broken into a ‘story’ portion and a ‘music video critique’ portion. Again, this rationalization only seems better because it tries to argue that the part of the show devoted to music video critique is inessential to the overall ‘plot’ of the show. But this seems downright fallacious to chop a show in half for the plot especially since the show is explicitly predicated not on the actual adventures of the characters but more essentially on their virtual embodiment of the consumers of music video culture. By cutting this half of the show out of their VHS recordings, they are more arguably destroying the integrity of the show itself, and thus its very essence.

The actual reason for editing the show is more insidious and it has to do with the nature of copyright laws. In general, Beavis and Butthead make fun of little-known artists, probably groups that could be called B-bands in the same way that one refers to B-movies. This is probably the case because these lower-grade music videos provide easy fodder for the deconstructive savvy of the characters, and they are in general downright ridiculous in their musical quality as well. But the more motivating factor would most likely be the fact that the licenses to reproduce the music video would be null in comparison to more successful and prominent bands. These caliber bands do occasionally make their way into the show as well (The Rolling Stones, for example). Nevertheless, all of these licenses would have been too much of an investment for the VHS copies of the show, most likely due to royalty rights and the very fact that the shows are being ‘purchased’. Even if the licenses wouldn’t necessarily be more for the VHS, the decision to cut out the music videos indicates at least that they would have cost something substantial enough to warrant their being edited out of the show completely. Thus the decisions of the producers of “Beavis and Butthead” foreshadowed—however silently and indirectly—the issue with copyright laws and the exorbitant fees surrounding them. If this is an example of the post-media era, it is a negative one, a symptom merely signifying that some media should be dispensed with simply on the basis of economic principles, even if these media constitute the core of the idea of what is being produced. A question of a difference and differential of surplus values (here opposed).

Another prime example of these trans-media confusions and stagnations concerning copyright laws involves one of the first games to integrate popular music into the growing console video game market. Guitar Hero saw its debut about a decade ago featuring hit songs from the recent past and present. The game was an innovation in video game simulations—whether involving music or not—insofar as the game came with a real-size plastic guitar fitted with game buttons (in lieu of actual strings) that allowed one to ‘strum’ along with a song as it played. In a sense, it added buttons and a score keeper to the classic art/game of air guitar. Better still, as you play the music you are bombarded by visual images as in a music video and you are submitted to a raving crowd that applauds your every success and boos your every missed note. More importantly though, it added another dimension to the consumption of music and the music video by integrating it with all levels of the musical experience: the live performance and the reaction of the crowd, the integration of the musical and the visual in a sort of live music video interaction and the ability to emulate your favorite bands and songs without the pesky need for recording equipment, real instruments or traditional skill. Here the music video perhaps cools down a bit because it becomes integrated into an assemblage of performance in which the viewer is now co-(producing) the music.

Nevertheless, it is a question of how cool the medium can be when its coolness–in the sense that McCluhan distinguishes between the amount of performance or “interaction” the medium requires: television being a hot medium, since it requires less interaction on the part of the viewer than radio, for example–in fact presupposes the coordination of several media at the same time. The first Guitar Hero game I ever played—and I’m not sure exactly which one, but it was one of the first—actually had a song list of some of my favorite songs, but none of them are actually recorded by their original artists. Although not explicitly advertising their game as featuring only covers (this would hurt their sales, obviously), the game nevertheless lists the songs in-game with their respective original bands—although it never states outright that these songs are indeed played by their actual bands. Doubtless, this made many buyers complain about the fact vehemently enough such that this kind of ploy was never pulled again. But the larger point is the fact that the game developers either had a budget for their game franchise and couldn’t meet it with the original artists—which seems unlikely insofar as they had never used covers before this—or, more insidiously, that they chose to capitalize on another in their line that would come out markedly under-budget and sell an acceptable number of copies. What better way to reinvest into a new enterprise than to cut one of the main costs—if not the main one—in the entire production? When the consumer can generally (if somewhat illegally) download the real songs for free, why would he want to pay fifty dollars to play songs that sound like they were covered in a metal trashcan in a small, country bar? With that attitude, why not create a game called ‘Public Domain Hero’ where you have the ability to perform every song without the burden of a copyright license[2], including your favorite war marches and religious hymns, which could be unlockable just so the game doesn’t make you feel like it’s given you everything for free.

And isn’t that what the recording companies are angry about, namely that they believe that individuals are stealing or getting products without paying? More poignantly, these companies are perhaps even more offended by the fact that even today most downloading (torrent sites, for example) are amply clad with all sorts of advertisements; thus their illegal media trafficking is also in itself a form or source of capital. It’s like insult to injury: if only these downloading sites were purely humanitarian, sharing culture for the sake of culture, for the ‘sake of educational purposes only’, and so forth. On the other hand, these recording industries are only now starting to get a grip on the online market by readily making digital audio and video for somewhat inexpensive prices, and they are having trouble converting these markets into their full potential because they haven’t found a legal means of combatting online piracy that will reduce its viability. Thus the real zeal for stronger piracy laws—not the displaced represented, so to speak, of the anger at stealing—is the anxiety and envy at not having effectively grasped the internet as a means of distribution. Instead, the legal attack on Napster, along with other sites, and its rehabilitation as a non-pirating, pay-to-play operation constitute a belated attempt to access and monopolize a system that was already leaking well before they began to plug it. The problem of the internet became for these companies the problem of the rhizome, of how to cauterize it and reduce it to a few stumps, a few cancerous growths on the backside of an industry that had not yet known how to capitalize on its new feeding grounds.

Today some organizations have spent quite a lot of money flooding television and the internet with a series of ad campaigns concerning the Protect IP Act. Nevertheless, it does not seem that intellectual property is the only thing that is being protected with this act, at least so it seems according to the way in which it has been strategically politicized. The television ad egregiously equates piracy as a catch-all term that includes internet piracy in general with trafficking of all kinds, including medicine generics/imports and purse/fashion knock offs, for example. The ad goes on to equate all these forms of piracy with the fact that other countries are stealing American jobs. This way of framing the issue not only alienates the American citizen who occasionally accesses illegal content on the internet. Furthermore, it seems to insinuate that somehow people lose jobs because the recording industry doesn’t cash in on what it considers to be an expected profit. Nevertheless, by throwing internet piracy in with illegal trafficking of all sorts in general and then to explain it in terms of job numbers is to obscure the issue and make it so that the bill to be considered in congress has all the right mixture of homeland security, interstate/international commerce, private property considerations, and the promises of a better economy.

The internet ad is almost more offensive and annoying. I recently encountered one while I was visiting one of my favorite torrent downloading sites. As I entered the site, a popup arose—impervious to my popup blocker—in the guise of a form to be filled out with my name and personal information. The popup informed me that I was visiting a site used for illegal piracy and that I should sign the form so that they could then call me on the phone. The form ended by stating that, after the group has thoroughly prepped and guided me about what to say concerning internet piracy policy, it would connect me to my nearest congressman to urge him to vote yes for the anti-piracy bill that will be coming up soon. Even if the popup will be ignored by most of the people visiting their favorite torrent sites, it is a fascinating ploy by the recording companies to take their fight straight to the websites that would have the ability to pose a threat to their projected profits, proselytizing their lost sheep, so to speak, trying to aggregate their herds to come back to the appropriate channels of purchasing their media.

However, it also seems that to save the sheep one has to get rid of false shepherds, and killing is what this bill seems to actually want to do. One of the provisions of the bill, section 5 specifically, grants web providers, search engines, financial transaction providers, internet advertising services, and domain name registrars to terminate services with those in violation of the act. In this sense, it is a real move to kill the opposition. In order for these recording industries to increase their market potential and charge higher premiums on their monopoly, they have to get rid of the sources behind the redistribution. In the past, some cases were brought against individuals who had downloaded content privately, and in a sense this proved to be a good tactic for some, acting as a deterrent and warning to those who wouldn’t have changed their ways without the threat of hefty jail time/fines. However, like the war on drugs, arresting the clients is one thing and it may be good for the prison business, but it doesn’t cut to the sources of the problem. Killing websites will go a long way towards reconsolidating the markets, and if it doesn’t add consumers in the short run, at least it cuts off the leaking to a tiny drip of precarious vagabond traffickers.

Or is it so simple? The question of internet piracy does not seem to be able to solve the large issue, which is the fact that American jurisdiction over websites with foreign domain names might not reign so easily and so unquestioned. It is one thing to negotiate with allies on this matter, but to gain worldwide consensus seems to be a remote possibility. Websites could even try and take domain names from countries that are somewhat estranged or at odds with the United States. The price would be worth it, considering that killing, for example, an Iranian or North Korean website (hypothetically) might cause international uproar; at the least, it wouldn’t be the best diplomatic relations strategy.

In any case, the prospect of killing websites has been around for a long time, and whenever it has succeeded, dozens, if not hundreds, of websites have replaced them, which in fact leads to a much broader and more connected network of groups and individuals invested in the piracy of media simply because it decentralizes an underground operation that has grown too large such that it forces the smaller sites to consolidate as well. So, on both sides of the legal apparatus there are movements to consolidate—both the potential markets on the side of capitalism and the ‘public domain markets’ on the side of piracy.

One of the ways in which sites have minimized their exposure is by advocating a membership system. For example, in some of these websites, membership enrollment is closed after only a few weeks. After that, membership can only be after two members have approved your nomination. Insofar as it may be difficult to make inroads with members before actually joining, membership remains fairly tight and the presence of illegal materials is locked behind password protected pages. In any case, tight security and restrictions on membership keeps the group low profile and also keeps bandwidth as evenly distributed as possible. Although most of these sites require monthly payments, some of them are simply meant to be restrictive of excessive members, while others simply want to coalesce around a narrower market (PDFs of literary theory and philosophy for example). Either way, keeping the number of users down helps keep these sites out of sight.

Another way some groups have begun addressing more intricate details of legal transformation is the way in which they have password protected every step of the installation process for programs. By having to enter a password at every step of the process, these sites attempt to minimize their culpability by claiming that the passwords keep it from being widely and carelessly distributed. On the other hand, since the inception of internet file sharing, groups releasing music, video or games have traditionally added a read-me file stipulating the legal and illegal uses of the media that have been downloaded. Regularly the info files state that all downloads must either be purchased in full through legal channels or fully deleted within 24 hours. This free-trial aspect to the downloads helps to promote several things: on the one hand, it can advocate that the uses of these media is for educational purposes only and is not meant for any monetary or distributional purposes beyond that fact; second, it can protect itself behind the fact that its limited distribution is in fact a means of promotion and access to cultural realities that would either remain unacknowledged without the means of the internet or would not be purchased without the ability to be fully immersed in the medium.

This brings me to my last point: pirating, seen in a positive light, is meant to be a motivator to purchasing an actual product and not its hindrance. In other words, a pirate always supports the media he cherishes, even if he or she doesn’t buy everything that they download illegally. As a matter of fact, many things I have bought before—including Nintendo and sega genesis systems, along with countless cds—I have had the privilege of downloading, mainly because what I had bought was either misplaced or quickly broke or became too scratched to play. You can’t download a Nintendo or any of their games from their web site even if you could prove ownership. On the one hand, its existence allows one to participate in fragments of culture that are not always readily perceptible on the surface of the market; it allows one to explore outside the confines of one’s own radio station or music television programs; it pushes one not to remain content with the manner in which the market strategically projects its next single, its next cinematic blockbuster, or its next great video game. It forces developing and recording companies to take seriously the fact that consumers are becoming less passive in their mass consumption and more particular in the exploration of their desires due to the very fragmentation that this decentralized culture of public sharing has made possible. The bizarre quandary that the recording industries are left with is this: the more strongly they attack and undermine this culture of piracy, the more they also detract from one of the strongest means of resonating refrains and other media in a prolific way. In other words, the more they apply their apparatuses of capture, the less there remains for them to capture. Like a malfunctioning hydraulic machine, there may be a big push, but it will only make a big splash. In a post-media era, one may hope at least that if private property and public domain do not sublate one another into a nice Aufhebung, then there will at least be a means of discrediting and displacing the monopoly of the copyright laws towards a more collective assemblage of enjoying the means of recording and production.

[1] This is my way not of dismissing Guattari, but of thinking him through in another context. Not to write on what Guattari said, but to think through what he was in the process of saying. Nevertheless, it can be said that these reflections here would not be possible without his influence, nor that of a good company of others.

[2] This is a new, as of yet projected ‘definition’ or framing of the idea of post-media: that to counteract the tides of capitalism and its attack on illegal piracy due to the notion of private property and copyright etc., one needs to expand the boundaries of the public domain, both its force as an idea and as a concrete reality due to questions of law. If capitalism wants to cut off illegal competition and create new media markets online to counteract piracy, then by the same token the boundaries of the public domain need to be expanded. Based on the history of the United States in its yoking of democracy and capitalism, this movement to restrict private property and copyright on behalf of the public domain could seem like nothing but base socialism. However, looking ahead to the future, one can foresee that the realities of the internet and other means of sharing will lead to the point where the means of recording, distribution and publication will not hold center place and will be more collectively shared and perhaps also much more creatively involved. “American Idol” may be the number one show in America today, but that is—according to this view—history as farce in reverse, i.e. as seen from a future time (for example, dehierarchization of voter, judge, consumer, producer, etc. Youtube Idol?). Such a time would then equate democracy with a collective domain more readily than private ownership. At what point does a Beatles song, or any song, become public property? How many times, how many people, for how long and what frequency, intensity, and feeling does it take? When does the surrounding culture get to come forth and take credit for giving rise to the production of these singular, monumental forms that are attributed to persons or corporations (although now that difference is linguistic alone)? Perhaps another post could be devoted to the ‘dialectics’ of that contradiction. This would perhaps resonate with the theme of the generic found in non-philosophy today.

3 Comments

A minor clerical detail that doesn’t change your argument at all, but for McLuhan television was a cool medium, not hot. TV today, on the other hand, would be relatively hotter, and something like Guitar Hero would be relatively hotter still.

There is a very strange thing going on where derivative works only operate in two contexts:

Beavis and Butthead could be built to be distributed from within the domain of MTV’s power base; broadcasting, where the licensing is in their favour, or it could have been done as an underground and unofficial “copy and pass on” situation where licensing is bypassed, but in the middle, it was impossible. MTV did not have the same favourable licensing terms for mass produced VHS.

The same can be seen with the film mulan rouge, which could not be made except as a particularly large film, due to all the licensing constraints, whereas people can make “song combining” musicals of their own that so long as they can stay low-profile enough to avoid them getting taken off youtube.

Fundamentally the law currently acts to make all derivative works impossible, unless you have the power to bypass it, or conceal the fact that you are doing it (either by concealing the work itself or concealing the references). Capturing the products of creativity in such a way that all the intermediary products on the way to an official product are illegal, and can only be produced by tyrannous or subversive means.

Although there is actually a third option, as shown in certain circumstances, particularly with creative commons (sa by) or where holders of copyright interactively waive their rights to inhibit derivatives. In these situations, the legal structure instead acts to create links of inheritance between works, and sometimes bring together people with similar creative projects. These links intentionally cannot be capitalised on, and do not act as transferable property, but nonetheless add value for participants, similar to citations in academic works.

I suppose these things could themselves turn licensing into a media; a navigable chain or net of related works.

I also wonder whether “fair use” needs to ally with those two times that copyright finds outside it’s reach; the times before a finished product has been produced; the scattered notes of the creative person, and those moments after it has been reclaimed, not into public domain, but into public consciousness, as a more generic description of it’s time or state.

It is almost as if those two times, normally pushed apart by the assertion of individual creation, form the pattern for true common creativity; that which is known is the public sphere, that which is unknown is that sphere’s refactoring and self-interaction through a particular mind, to come back into itself in a new form, immediately taken up into further self-interactions.

If fair use provisions can define a path that bypasses “the product” in its self-identity, then perhaps this process can continue at it’s hottest unbowed, with only it’s slower eddies crystalising into products.